2017 (4) TMI 433

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..... ioner (Appeals) cannot exercise the power which is vested in Commissioner. The right course on the part of the Commissioner (Appeals) was that he should have directed the adjudicating authority to first ascertain the decision of the Commissioner on the issue of condoning the lapse and thereafter pass a reasoned order - matter remanded to the original adjudicating authority with a direction that the respondent shall approach to the Commissioner for the same and after disposal of such matter by the Jurisdictional Commissioner the adjudicating authority shall pass a fresh order - appeal allowed by way of remand.
Shri Ramesh Nair, Member (Judicial) Shri N.N. Prabhudesai, Supdt. (AR) for the appellant Shri Bharat Raichandani, Advocate for t .....

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..... d that only three machines were working however the demand along with interest and penalty was confirmed by the original authority. Being aggrieved by the adjudication order, the respondent filed appeal before the Commissioner (Appeals). The Commissioner (Appeals) allowed the appeal contending that there the lapses in compliances with the condition under Rule 96ZM of the Rules and held that under Rule 96Z(4) of the Rules, duty should be paid as per Rule 96ZL(1) of the Rules on the 951 machines shifts not declared by the appellant as mentioned in para 6 of the notice at the applicable compounded levy rates under Rule 96ZI. The entire ground of the revenue in their appeal is that the Commissioner (Appeals) has condoned the lapses under Rule 9 .....

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..... ore the Commissioner (Appeals) cannot exercise the power which is vested in Commissioner. The right course on the part of the Commissioner (Appeals) was that he should have directed the adjudicating authority to first ascertain the decision of the Commissioner on the issue of condoning the lapse and thereafter pass a reasoned order. If the adjudicating authority made any mistake, the right course of action is to remand the matter with a direction to correct the mistake but in any circumstances the Commissioner (Appeals) is not authorised to exercise the power vested in Commissioner. I am therefore of the view that the order of the Commissioner (Appeals) is not sustainable on this point alone. I therefore set aside the impugned order and rem .....

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